"Posner, who exposed himself to serious researchers as a government shill with his first book on the JFK murder (Case Closed), dismisses the entire trial as a farce, "a cynical scheme to give some official sanction to the discredited theory that the Kings enthusiastically endorse" as part of the "persistent effort of the Kings to help Pepper exonerate Ray and to charge instead that much of the federal government killed Dr. King." These references to a "discredited theory" and a "charge" come, mind you, at the very end of a 923-word article that makes no mention of the actual finding, which is neither a "theory" nor a "charge" but a verdict. Posner, as a lawyer, knows the difference, but he obviously does know want his readers to know, and cannot quote the 50 plain words of Judge Swearengen (see above) for fear of exposing himself too plainly as the legal farce, not the trial in which 12 jurors heard 70 witnesses in three and a half weeks of testimony and concluded unanimously that the US government was involved in a conspiracy to "do harm to" MLK.

The phrase "do harm" was used by the judge instead of "murder" because this was a civil suit, not a criminal trial, but there can hardly be any doubt that the harm done was to kill him. I say "hardly" because I also have no doubt that Posner--if he had thought of it--would not have hesitated to claim that this refers not to the murder but to the FBI campaign to discredit King before the murder. There was such a campaign, of course, but even the scantest glance at the trial transcript makes it clear that murder is meant, since Jowers was not involved in the FBI defamation campaign, but only in the murder.

Posner does apply his legal expertise to the distinction between civil and criminal trials in an attempt to discredit the evidence. This point was taken up by a number of other journalists as well. It's is a bit tricky, so let's look at it :

The civil standard is only a "preponderance of the evidence" as opposed to the more stringent "beyond a reasonable doubt" of a criminal trial. And in the four-week trial that just finished in Memphis, Pepper had a field day. With a hands-off judge who allowed almost everything to come into the record, coupled with an astonishingly lethargic defense offered by Jowers, Pepper essentially had an uncontested month to argue the theory set forth in his book.

Note the incoherence between the first sentence and the rest of the paragraph. I am not a lawyer, just an English teacher, but I can recognize that "preponderance of evidence" does not have to with the kind of evidence that is allowed, but with the certainty of the conclusions based on the evidence. Posner's implication is that the evidence produced in this trial, because it was a civil trial, is less reliable, less "evidential," less credible, less factual that it would be if it were produced in a criminal trial. This is absurd. It would mean that, say, 5 witnesses testifying that Joe Blow was wearing brown shoes at a certain time on a certain day is somehow less reliable, credible, factual, etc. than the same 5 witnesses testifying to the exact same thing in a criminal trial.

If Posner were honest, he would report that the Jowers verdict says that the US government was probably part of the conspiracy to murder MLK. This is less certain, legally, than saying it is beyond reasonable doubt (which could not be determined unless the US government was tried for murder). But it is still too much for Posner. He cannot allow it to stand that it was established in a court of law that the US government probably killed MLK. He knows that the public does not react so cavalierly to the notion of a civil suit being inconsequential, since in other cases they can result in penalties of millions of dollars, even though this one awarded only $100 to the King family. (Another possible approach for Mr. Posner, Esq.: Why, this suit only involed $100. It would be much more credible if the damages were $1 million!)

The truth of the Jowers trial, even with "probably," is suppressed completely, and the further implication is the evidence that convinced the jury of this (probable) conclusion was less reliable than if it had been a criminal trial. If he had said it this way, it would be a lie, so he says it indirectly. The fact is that the evidence is just as credible as it would have been in a criminal trial, even if the sum total of this evidence would have had to be greater to prove complicity (conspiracy).

Posner does not mention any of this evidence, because it would destroy the power of his innuendo, which is that the evidence is unreliable because it was presented in a civil trial. He cannot deny the testimonial evidence that African-American police officers and firefighters had been pulled from duty in the vicinity of King's motel room, that normal security had been withdrawn in the hours before the shooting, that the sniper's bullet had come from the bushes across from the motel room and not from the rooming house where Ray was, that the bushes were removed by the Memphis police and the FBI the morning after the shooting (thus sanitizing the crime scene), that two Army officers with cameras were positioned on the roof of the fire station, also across from the motel, during the shooting, that an Army sniper team had been sent to Memphis to shoot an "unknown" target on April 4 and were being transported to Memphis when their mission was suddenly cancelled (the back-up team), etc.

Of course you can argue about this evidence. Maybe the witnesses were all lying. But this is not the point, and even Posner doesn't try to imply that lying witnesses are more likely to be found in a civil trial than a criminal trial. He has to leave it at innuendo, because anything more specific would be an obvious lie. If the Army filmed the shooting from the fire station roof, the Army filmed the shooting from the fire station roof. This testimony would not become more credible in a criminal trial, which is what Posner wants us to believe."

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